Northern Ireland - Social Security and Child Support Commissioners' Decisions

Decision No: C1/06-07(SDA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
SEVERE DISABLEMENT ALLOWANCE
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 3 May 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by the legally qualified panel member (LQPM) against a decision dated 3 May 2006 of an appeal tribunal sitting at Belfast. I consider that I can properly decide this matter without a hearing. The claimant had been in receipt of severe disablement allowance (SDA) from 19 February 2006. She was examined by a medical practitioner (EMP) on 17 May 2005 and, having considered the available evidence the Department superseded the awarding decision and disallowed SDA from and including 27 September 2005. The conditions for entitlement to SDA are that a clamant be both incapable of work and disablement to a level of 80% (assessed in accordance with the statutory provisions). The claimant appealed to the tribunal which heard her case, conducted (as it was entitled to do) a medical examination and adopted the EMP's report and its own findings on examination. The EMP had assessed the claimant's disablement at 40% and the tribunal in its reasons commented that this percentage assessment was "fair, if not generous". The tribunal in its reasoning also records inter alia:

"Declared fit for work by General Practitioner."

It then disallowed the appeal. In the Record of Proceedings it is recorded that the tribunal considered the following documents:

"(1) Departmental submission.

(2) X-rays and notes from Whiteabbey Hospital.

(3) Report of Belfast City Hospital, Accident and Emergency 9/9/05."

It is also recorded as part of the note of the claimant's evidence to the tribunal:

"1/11/05 General Practitioner: "fit for work"."

The note of the claimant's evidence is in abbreviated form and there is no indication of the tribunal raising with the claimant the issue of the GP finding her "fit for work". The tenor of the claimant's evidence was certainly to the effect that she was not "fit for work".

2. The claimant sought leave to appeal from the LQPM. Her grounds for so doing were set out in a letter dated 2 September 2006 and essentially were that the tribunal was wrong to conclude that her GP had found her fit for work as he had not said that. She also included a letter dated 18 May 2006 from the GP which said inter alia:

"The appeal decision may have been relied upon the recording of "fit for work" in her medical record on the 1st November 2005. This entry was inputted to her computerised record upon receipt of the social security form indicating that a decision that she was fit to work had been made. This was not the expression of an opinion by her general practitioner that she was fit for work. It simply records the decision if [sic] the incapacity benefits system."

3. The LQPM granted leave stating that he was satisfied that grounds had been established that the decision of the tribunal is, or may be, erroneous in point of law. He stated that the point of law was:

"mistaken interpretation of "fit for work," reference doctor's letter of 18.5.06."

4. The Department opposes the appeal. It is represented by Mr Kirk of its Decision Making Services branch. Mr Kirk, in his letter of 27 November 2006, submits that while there may have been an inadvertent error in the tribunal's reading of the term "fit for work" it was quite apparent that the tribunal would still have come to the conclusion that the claimant was less than 80% disabled and therefore not entitled to SDA. The tribunal, in its reasons had founded its decision on the EMP's report and its own examination.
5. I do not have the medical records before me and therefore am unable to decide whether or not the entry in the GP records was capable of bearing the interpretation which was placed on it by the tribunal. That is the standard which I have to adopt. However, in light of the claimant's evidence to the tribunal it appears highly unlikely that she herself was saying that her GP had found her capable of work. Her evidence was of no change since her condition of 1996 when the GP had certified her as unfit, of specialist referral, of a particular upset in September 2005 with pain and nausea from a peptic ulcer, of continued pain, asthma, depression and anxiety for several of which she was on ongoing treatment. I should make it clear that the tribunal was under no obligation to accept or indeed to reject this evidence. The point is that the one isolated statement that her GP had found her fit for work is completely contrary to the tenor of the claimant's evidence. I am driven to the conclusion that the tribunal must have erred in failing to explore this matter further with the claimant.
6. As to whether this error vitiated the decision, Mr Kirk submits, in light of the assessment of 40% disablement, that it did not. If I was convinced that the said assessment was uninfluenced by the conclusion that the claimant's own GP had found her fit to work, I would let the decision stand. Entitlement to SDA depends on unfitness to work and a disablement assessment of 80% or more. However, given the nature of the claimant's complaints and the clinical findings, the assessment of the claimant's evidence appears crucial. Against that background I cannot conclude that the decision was uninfluenced by the conclusion that the claimant's own GP had found her fit for work. It is, after all, mentioned in the reasoning. That being so I cannot say that the decision would have been the same had the error not occurred.
7. I therefore set the decision aside and remit the matter for rehearing before a differently constituted tribunal. The claimant should be aware that my having done so is no indication of the likely substantive outcome of this matter.

(signed): M F Brown

Commissioner

20 February 2007